Former Chief Michael Newsome was accused of using the money to buy a new car and do home repairs on his kitchen, among other personal expenditures, Lake County Assistant State’s Attorney Steve Scheller said.
Bipartisan coalition introduces new FAIR Act. Successor bill contains additional forfeiture reforms.
A bicameral and bipartisan coalition has just introduced a new FAIR Act. Building on the reforms offered last year, the new FAIR Act also contains new protections against forfeitures triggered by unintentional 'structuring' of deposits and new proportionality analysis to guide courts. Text of the new FAIR Act is available here.
Americans for Forfeiture Reform has filed a request with the U.S. Court of Appeals for the Ninth Circuit. AFR is seeking permission to participate in oral arguments in United States v. Moser, an appeal of a District Court order slashing an attorney fee-shifting award arising from a civil forfeiture. Potentially at stake in Moser is whether the Civil Asset Forfeiture Reform Act of 2000's fee shifting provision continues to provide a compelling market incentive for private attorneys to take cases defending forfeiture victims on hopes of winning fee shift awards.
Whatever the U.S. Court of Appeals for the Ninth Circuit decides in Moser could thus shape whether forfeiture victims will be able to retain counsel when they lack the means to finance a forfeiture defense out-of-pocket or when legal costs threaten to surpass the value of the seized property---which is often.
AFR's request for inclusion in oral arguments is below.Read more
Last Friday, January 16, 2015, US Attorney General Eric Holder released an order stating that "Federal adoption of property seized by state or local law enforcement under state law is prohibited..." with some exceptions: 1) cases involving firearms, ammunition, explosives, and child pornography and 2) for cases where there is coordination or assistance from federal authorities. As I'll show below, these exceptions make Holder's policy change virtually meaningless for advocates of sensible reforms to federal asset forfeiture practices, and only affect a small number of forfeitures processed through the Equitable Sharing Program. Worse, this policy change essentially formalizes federal partnerships as a modus operandi for Equitable Sharing forfeiture revenues for state and local law enforcement, giving the federal government a slightly stronger hand to play against the authority of states to dictate the policy and practices of their own executive agencies.
How the Exceptions to the Holder Memo Swallow the Rule
It's important to realize that the first set of exceptions for "firearms, ammunition, explosives, and child pornography" is very broad. A Pew Research Center survey found in February 2013 that some 37% of American households own a firearm. And a recent investigative report from 10 News in Tampa Bay, Florida, found that Florida law enforcement agencies are using often-spurious felony accusations of child pornography to seize vehicles from victims who are never charged:
In addition to federal grant dollars used to run the ICAC stings, 10 Investigates found law enforcement agencies frequently took the vehicles from men arrested and kept them as their own – even when charges against the men were dropped.
In November, 10 Investigates reported how Florida's Contraband Forfeiture Act made it easy for agencies to seize property as their own from anyone accused of committing a felony – even if charges are ultimately never filed.
Sex stings have become especially rich sources for seizures, since almost every man arrested is accused of traveling to seduce, solicit, or entice a child to commit a sexual act…even though no real children are ever involved in the stings. However, the accusations are felonies, meaning law enforcement can seize suspect's vehicles, making it extremely difficult for them to ever get them back without paying thousands of dollars – or more - in cash to the arresting agency.
In context of these exceptions, we can predict that law enforcement agencies will increasingly look to generate accusations of illegal activity involving firearms or child pornography to sustain forfeiture revenues that state and local law enforcement have become increasingly dependent on.
The second set of exceptions to Holder's prohibition of federal adoption is very broad as well, and in fact virtually negates the direct prohibition on adoption by allowing adoptive forfeitures as long as the seizure is accomplished with federal assistance or cooperation through a joint task force, a joint investigation, or pursuant to a federal seizure warrant. First, this will have a rather small impact; as Jacob Sullum at Reason noted today:
That means adoptions, which the DOJ says represented about 3 percent of deposits, accounted for less than 14 percent of equitable sharing. In other words, something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder's new policy.
Moreover, these forfeitures are not entirely prohibited; all the Holder memo means is that the Department of Justice now requires a federal partnership to accept them. This is a very low bar to reach; every state or local task force in existence has access to a federal law enforcement agency liaison through which such partnership may be possible.
How the Holder Memo Will Drive Increasing Federalization of State and Local Law Enforcement Practices and Priorities
The Holder memo essentially formalizes that continued receipt of federal forfeiture revenues by state and local law enforcement must happen in coordination with a federal law enforcement agency. State and local law enforcement that have previously conducted their own asset seizure and forfeiture programs unilaterally and just sent forfeitures for adoption through Equitable Sharing must now develop an active federal agency partnership to facilitate continued forfeiture activity under federal law. This increasing reliance on federal law and agencies to drive asset forfeiture revenues thus corrodes the federalist checks on state sovereignty by giving state and local law enforcement incentives to ignore following state law and legislative priorities.
Two major recent scandals involving local law enforcement agencies are instructive here. Consider first the happenings in Bal Harbour, Florida, which are likely now prohibited by the Holder memo:
It puts an end to egregious abuses such as the slush fund created by police in Bal Harbour, Florida, with the proceeds of federally adopted forfeitures. The Miami Herald reported that the little town's cops raked in $19.3 million over three years, which they used for parties, trips, and fancy equipment such as "a 35-foot boat powered by three Mercury outboards" and "a mobile command truck equipped with satellite and flat-screen TVs."
It's a good thing that the Holder memo might restrict such activity. Yet, it's not much of a reform to mandate that future uses of the Equitable Sharing Program involve federal agency partnerships. In November 2012, Jacob Sullum covered the story of the Motel Caswell in Massachusetts:
Caswell, who has been running the motel since 1983, says he has no way of knowing what his customers are doing behind closed doors. He has always cooperated with the police, calling them to report suspicious activity and offering them free rooms for surveillance and sting operations.
In 2009 he got his reward: a forfeiture notice. Police had never suggested additional steps he could take to discourage crime or warned him that the motel—which supports him, his mother, his wife, their son, their daughter-in-law, and their granddaughter—could be at risk.
This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an "equitable sharing" deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.
Under Massachusetts law, by contrast, police would have received only half the loot, and forfeiture may have been harder. State law says a seized property has to be used not just to "facilitate" a drug crime but "in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances," which suggests a stronger connection.
Under the Holder memo, this kind of activity is not prohibited; in fact it is formalized. While we might now see fewer scandals like Bal Harbour, we will likely see more cases like the Motel Caswell, where a federal agency seeks to seize valuable property from innocent owners with the aid of local law enforcement despite federal law prohibiting such activity.
Next Steps for Forfeiture Reform
It is important to recognize that the Holder memo does NOT change federal law and is not legally enforceable in a court of law. It provides no relief to property owners facing asset forfeiture. It is simply a directive from the Attorney General that federal agencies follow a certain policy, possibly in ways that increase the risks facing property owners in the United States substantially.
AFR Research Director Scott Meiner notes that "the other part of the story that no one seems to be commenting on is that Holder did order a "comprehensive review" of the federal asset forfeiture program. Paired with lawmaker pressure, meaningful findings and maybe even reforms could come out of that review". It is essential that Congress act to provide real legislative reform of this system; a good step would be to abolish the Equitable Sharing Program entirely.
9th Circuit Court of Appeals calendars oral arguments in three forfeiture attorney fee-shifting cases
The U.S. Court of Appeals for the Ninth Circuit has scheduled oral arguments for three appeals that could shape the future availability of fee-shifting awards in civil asset forfeiture cases. Arguments for each will be heard on March 2nd, 2015, in Pasadena, California.
The first appeal, U.S. v. Moser, concerns whether a federal district court abused its discretion in the low attorney fee award it set for the prevailing forfeiture claimant, slashing the hours claimed by the claimant's counsel, and further reducing the attorney's fee pursuant to the so-called Kerr/Johnson factors.
Americans for Forfeiture Reform filed an amicus curiae brief in Moser, available here, and is seeking time to participate in the oral arguments.
I blogged about the case in February of 2013:
Claimants who substantially prevail in federal civil asset forfeiture cases and seek costs are generally eligible to receive awards of reasonable attorney fees and other litigation costs reasonably incurred by the claimant pursuant to the fee-shifting provision of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). 
The dispute over what constitutes a proper award of attorney fees stems from the government’s unsuccessful attempt to forfeit $28,000.00 from claimant Robert J. Moser. In March of 2012, U.S. District Judge Larry Alan Burns issued a ruling granting claimant Moser’s motion to suppress evidence and granting Moser’s motion for Summary Judgment after finding purposeful and flagrant constitutional violations:
“…Moser’s consent in this case followed closely on the heels of serial constitutional violations including ignoring the requirement to advise him of Miranda rights before questioning him about the marijuana and illegally entering and reentering Moser’s home without a search warrant.
The Court also finds the constitutional violations that preceded Moser’s consent were purposeful and flagrant. There is no suggestion here that either Deputy Bloomberg or Officer Reed believed that they were acting under the authority of a search warrant when they entered Moser’s home. And even if they were uninformed or confused about the existence of a search warrant, the federal agents were present during both of their searches (even accompanying Deputy Bloomberg on the first occasion) and did not inform their state counterparts that no search warrant had been obtained. Moser’s earlier limited consent to enter the home for the purpose of escorting him to retrieve his medication did not authorize the subsequent entries to search for marijuana and evidence of other crimes.
There is really nothing, then, to purge or attenuate the taint of the initial illegal searches of Moser’s home. Moser’s consent to search was tainted by those initial constitutional violations. The Court concludes that the $28,000 must therefore be suppressed.” United States of America v. $28,000.00 in United States Currency, Order Granting Defendant-Claimant’s Motions to Suppress and for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, and Denying Plaintiff’s Motion to Strike the Claim as Moot, 2012 U.S. Dist. (S.D. Cal. March 29, 2012).
On February 11th, 2013, United States District Judge Larry Alan Burns issued another order granting an award of $14,000.00 of the $50,775.00 in attorney fees sought by Claimant Moser and his attorney Richard M. Barnett. The latter order is as problematic as the former was commendable. Judge Burns’ opinion first reduced Barnett’s requested-for-fee from $500.00/hour to $300.00/hour and then accepted only 60 hours of Barnett’s reported 100+ work hours, reasoning that “Barnett gave the government’s litigation work more respect than it deserved.” After arriving at a lodestar figure of $18,000.00, Judge Burns proceeded to downgrade the $18,000.00, in part, because Barnett was willing to take the case on a contingency basis set at 1/3 of the $28,000.00 and because, in Judge Burns’ apparent reasoning, Barnett would have been aware that CAFRA fee-shifting awards are rare and not intended to produce a bounty for attorneys. Judge Burns then made a small allowance for risk and arrived at the $14,000.00 sum:
“The remaining relevant factors are the customary fee, whether the fee is fixed or contingent, the amount involved, and the “undesirability” of the case. These all boil down to a limited set of facts, namely that Barnett knew Moser could not recover more than $28,000, and he agreed in a contingent fee agreement to accept 1/3 of the total recovery as his fee.
Civil forfeiture cases involve a variety of types of property and a wide range of property values. Within this range, a claim for $28,000 is not as lucrative as some, but a contingency fee agreement would be enough to attract competent counsel. See Blanchard, 489 U.S. at 92 n.6 . It is not such an undesirable case that a higher fee award is merited in order to encourage attorneys to undertake the representation. The Court finds very significant the fact that Barnett was willing to undertake the representation for no more than $9,333.33 plus costs. He might have expected it to settle quickly, based on the strength of Moser’s suppression argument. But there was no assurance of that. He might also have hoped for an award of fees under CAFRA. But he would have been aware that fee awards are not common, and also that they are not intended to produce a bounty for attorneys. See Blanchard, 489 U.S. at 92 n.6. The logical and reasonable inference here is that Barnett and Moser agreed to a fee of no more than about $9300.
It is also significant that this was a contingent fee agreement. The fraction of the recovery that goes to the attorney under such agreements typically compensates the attorney not only for work done in cases where his client prevails, but also covers the attorney’s losses in cases where the client recovers little or nothing. In other words, it is adjusted upwards to account for risk. The $9,333 figure can be presumed to be higher than what Barnett would charge if there were no risk, i.e., if Moser had guaranteed payment regardless of the outcome.
While the Court recognizes that this figure is not a cap on the award, it is nevertheless relevant. See $186,416.00 in U.S. Currency, 642 F.3d at 755 (court may consider fee agreement when determining reasonable fee award). Bearing in mind the relevant Johnson factors, the Court determines that a fee award of $18,000 is excessive, but an award of $14,000 is reasonable.” United States of America v. $28,000.00 in United States Currency, Order Granting In Part Motion For Attorney’s Fees, 2013 U.S. Dist. (S.D. Cal. February 11th, 2013).
What Judge Burns’ formulations seem to ignore is that CAFRA’s fee-shifting provisions were meant by Congress to induce private attorneys to take civil forfeiture cases. The awards were never meant to be mere happenstance or afterthought. Rather, the cost-shifting provisions were intended as a solution. They were supposed to create and drive a market. They were supposed to address that asset forfeiture law is highly specialized, unlikely to be handled well by those lacking significant experience in asset forfeiture law, frequently expensive to litigate, and that innocent property owners were understood to be conceding cases or going bankrupt defending against federal forfeiture actions. Moreover, an assessment that “fee awards are not common” would demand an upward determination from lodestar to sufficiently induce the availability of attorneys willing to take cases looking for such awards.
Furthermore, treating CAFRA’s fee-shifting provision as mere afterthought ignores the power of the provision to persuade public interest groups to assume the costs of litigating gross injustices in civil asset forfeiture. The availability of compelling fee-shifting awards makes it feasible for public interest groups to take more cases and argue them with added vigor. It should be reiterated that the government only pays when claimants substantially prevail–that is, only in cases of genuine merit and precisely when we would most want attorneys or public interest groups to step in and offer to take cases for the lure of CAFRA’s fee-shifting awards.
In the second appeal, Optional Capital, Inc. asks for review of a federal district court's order denying its motion for attorneys' fees, arising out of a civil forfeiture action, because the court did not construe Optional Capital, Inc. as a prevailing party entitled to an award of attorney fees under 28 U.S.C. § 2465.
In the third appeal, the U.S. Government appeals an assignment of awarded attorney fees to renowned forfeiture attorney Eric Honig, arguing that attorney fee assignments are not “final” under 28 U.S.C. §2414, until the government approves them, pursuant to the Anti-Assignment Act, codified at 31 U.S.C. §3727. Were the Government to prevail, attorneys would be on notice that they may never receive fee-shift awards, despite winning their cases. The NACDL filed an amicus curiae brief, available here; the Government's first appellant brief is available here; and Honig's response is available here. I'll be blogging more on this case as we get closer to oral arguments.
 CAFRA’s fee-shifting provision is codified at 28 U.S.C. § 2465. For discussions of the meaning of substantially prevails and the availability of EAJA and CAFRA fee-shifting provisions, see Eric Honig, GETTING EVEN: The Government’s Liability for Payment of Property Owners’ Attorney Fees in Federal Asset Forfeiture Cases, retrieved on 24 Feb. 2013 from http://www.forfeituredefender.com/uploads/Attorney_Fees.pdf; c.f., David B. Smith, Prosecution and Defense of Forfeiture Cases (Matthew Bender 2012); United States v. $186,416.00 in U.S. Currency, 642 F.3d 753 (9th Cir. 2011); United States v. 2007 BMW 335I Convertible, 648 F. Supp. 2d 944 (N.D. Ohio 2009); United States v. 115-98 Park Lane South, No. 10 Civ. 3748 (BMC) (E.D.N.Y. Sept. 4, 2012); and United States v. United States Currency in the Sum of Six Hundred Sixty Thousand, Two Hundred Dollars, 438 F. Supp. 2d 67 (E.D.N.Y. 2006), Retrieved on 24 Feb. 2013 from http://www.kessleronforfeiture.com/asset-forfeiture-cases/
 Richard M. Barnett is a highly respected attorney and considered an expert in asset forfeiture law.
 For a general discussion of lodestar calculations and adjustments see Brooks Magratten; Robert D. Phillips Jr.; Thomas Connolly; Renee Feldman; and Isaac Mamaysky, Calculating Attorney Fee Awards, GPSOLO, 27:2 (2010), Retrieved February 24, 2013.
 $300.00/hour x 60 hours=$18,000.00.
Wyoming's Senate Judiciary Committee has pre-filed remarkable legislation aimed at reforming the state's asset forfeiture practices.
If adopted, Wyoming would
(1) begin requiring convictions before property could be forfeited via state laws; and
(2) prohibit all Wyoming law enforcement from accepting federal forfeiture proceeds "conditioned upon the state law enforcement agency's adoption of federal law enforcement practices and procedure"---a current eligibility requirement for receipt of federal forfeiture funds via the federal equitable sharing agreement.
Wyoming's 2015 legislative session is scheduled to begin on the 13th of January 2015.
I recently had the chance to meet Christine Shuck, a woman who was raided by a drug task force in Cass County, Missouri, over the marijuana grow that she and her husband operated. Unusually, Christine documented her family's legal ordeals in a book "The War on Drugs: An Old Wives Tale". I excerpt this selection from the chapter "The War on Drugs in America":
Make no mistake, the War on Drugs means the opportunity for law enforcement, lawyers, and the industrial prison complex to make bigtime money. It is a siren call, corrupting officials and encouraging the acceptability of what can only be described as legal theft.
First and foremost, there is asset forfeiture. I described this earlier, but I really want to reinforce the lesson that we learned. Essentially, if you are accused of a crime then your assets can be seized and sold, even without any conviction in a court of law. Countless travelers have fallen victim to this. Traveling with cash, anything from a few hundred dollars to thousands is often considered an ‘indicator of criminal behavior’ and cash and vehicles are confiscated without any due process.
In our case, all of the lights, the ionizer that helped cut down the smell of the plants, and anything of any value that was directly related to marijuana production was confiscated and sold – long before our day in court. What is interesting though is the fact that while 13 plants were confiscated, only ten were reported as seized. We had ten almost dead harvested plants and we had three healthy ready-to-be-cloned plants. I’ll leave it to you to figure out what happened to those remaining three.
When you give any individual or group of people the power to confiscate an individual’s assets – cold hard cash, expensive equipment, et cetera – you open the door for graft, corruption, and greed. That’s a fact. We can point to the individuals on the police force, or the judge who accepts bribes, or the county commissioner, or a host of others as being the “bad apples” – or we can recognize that the system of asset forfeiture is endemically flawed.
Feds Cite 2004 Scandal in Denying North Carolina Sheriff Readmission into Equitable Sharing Forfeiture Program
Sarah Willets at the Robesonian reports:
The U.S. Department of Justice says a “strict” remediation plan is needed for the Robeson County Sheriff’s Department to again participate in the federal Asset Forfeiture Program after officer misconduct caused it to be expelled from the program 10 years ago.
“The nature, scope and duration of the Robeson County Sheriff’s Department misconduct was among the most egregious in the history of the Equitable Sharing Program,” said Peter Carr, a Justice Department spokesperson, in a statement emailed to The Robesonian. “While the officers who perpetrated this decade-long crime spree have been appropriately punished in the criminal justice system, the damage their actions did to the program is not easily undone.”
AFR Research Director Scott Meiner noted in a June 2012 roundup of law enforcement corruption and asset forfeiture abuses in North Carolina that:
"...Robeson ranked first in the state in cash received per capita as part of the DOJ’s Equitable Sharing Program. Problems ensued. Numerous deputies eventually pleaded guilty to stealing cash seized incident to traffic stops. More exotic convictions included ”conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act(RICO), conspiracy to commit money laundering, conspiracy to defraud the government, conspiracy to commit satellite piracy, conspiracy to commit kidnaping, conspiracy to distribute cocaine and use of a firearm during and in relation to a crime of violence” as part of the Department of Justice’s Operation Tarnished Badge investigation of the Robeson County Sheriff’s Department. The sheriff and 21 others (of approximately 120 employees) were convicted."
Robeson County District Attorney Johnson Britt criticized Sheriff Sealey prior to the November 2014 midterm elections, noting that:
"...attempts during the past 10 years to be reinstated have failed because Sealey has been “unwilling to comply with regulations of eligibility.”
Britt said that the Justice Department is still concerned that Sealey employs individuals implicated in Tarnished Badge but not charged; provides inadequate supervision of the Drug Enforcement Unit; and that training of department personnel is inefficient.
“I don’t think these issues have been worked out or they would be back in the program,” said Britt. “… From information shared with me, unless these concerns are addressed, the department will not be reinstated.”
According to Britt, the inability of the Sheriff’s Office to regain eligibility in the federal program has been a “management decision.”
“I believe that if a new sheriff is elected, and that individual demonstrates to the Justice Department he or she is willing to make necessary changes, then opportunity to participate in the program will be greatly enhanced and likely to occur.”
Ultimately, the challenges facing Robeson law enforcement extend beyond a future reinstatement to the federal Equitable Sharing program. Sending non-appropriated federal forfeiture revenues to local law enforcement undermines local control of law enforcement, and skews law enforcement priorities away in the direction of collecting revenue. Additionally, federal oversight of these programs is generally lacking, as the Office of the Inspector General only audits a handful of agencies annually for compliance with federal Equitable Sharing regulations. The North Carolina legislature should act to take control of this situation by demanding all federal forfeiture revenues go to the North Carolina general fund, for appropriation by the elected representatives of the people of North Carolina.
Trial Date Set in Case of North Chicago Police Chief Accused of Stealing 140k from Asset Forfeiture Funds
The Chicago Tribune reports:
North Chicago Police Chief Michael Newsome, accused of stealing more than $140,000 from the city’s drug asset forfeiture fund in 2012, is scheduled for trial Feb. 2.
Both Assistant State’s Attorney Fred Day and defense attorney Douglas Zeit said this fall they wanted to see the case resolved before the end of this year, but delays due to illness and final evidence disclosure pushed the case into 2015.
Newsome pleaded not guilty in February 2013 to charges of theft of government property, which carries a mandatory 6- to 30-year prison sentence upon conviction. He is also charged with official misconduct and misallocation of funds.
After 14 years with the North Chicago Police Department, Newsome was promoted to police chief in 2005. He resigned in 2012.
In 2012, the Chicago Tribune reported that:
Newsome, 51, was also charged with a separate count of theft of $500 to $10,000, stemming from an allegation that he withdrew an amount of money on May 4 of last year to pay for his children's school, authorities said.
Newsome's case highlights the ongoing and persistent issues with allowing law enforcement to control the non-appropriated revenues garnered through asset forfeitures. A key reform at the state and federal level would be to simply send forfeiture revenues to general funds controlled by legislative bodies; this policy change would eliminate a source of temptation and corruption endemic to law enforcement agencies that receive these revenues.
Thanks to the efforts of Senator Rand Paul (R-KY) and Representative Tim Walberg (R-MI-07), among others, the 113th congressional session saw the introduction of two significant bills aimed at reforming federal asset forfeiture practices. While neither Sen. Paul's bill nor Rep. Walberg's bill made it out of committee, both bills attracted bipartisan support, and both bills suggested meaningful reforms. Further, Rep. Walberg's bill managed to attract 20 co-sponsors in the brief run-up to the 2014 elections. As such, Americans for Forfeiture Reform endorses reviving both bills in the 114th Congress.
An overview of what both bills would have done, which legislators supported the bills, and where the bills (if reintroduced) might be improved:
The FAIR Act (S.2644, 113th Congress, 2013-14). Senator Rand Paul proposed three significant reforms to federal and state civil asset forfeiture practice.
Sponsor: Sen. Rand Paul (R-KY).
Co-Sponsor: Sen. Angus King (I-ME).
The bill attempted to curb federal participation in the perverse incentives driving asset forfeiture abuse by directing federal forfeiture proceeds to the Treasury department's general fund in lieu of the DOJ's asset forfeiture fund.
It would have prevented state and local police from evading state laws governing the availability of civil forfeiture and the distribution of forfeiture proceeds (several states' police agencies, for instance, circumvent state laws directing forfeiture funds to education by having the DOJ adopt their forfeitures in a process called equitable sharing).
The act would have increased the Government's burden of proof for a forfeiture, from a preponderance of the evidence standard to that of a clear and convincing evidence standard--the standard originally proposed for the Civil Asset Forfeiture Reform Act of 2000.
Introduced by Rep. Scott Garrett, H.R. 5502 (113th Congress, 2013-14) mirrored the proposals described above in Sen. Paul's FAIR Act.
Sponsor: Rep. Scott Garrett (R-NJ-05)
Co-Sponsors: Rep. Tim Walberg (R-MI-07); Rep. Tony Cárdenas (D-CA-29).
Civil Asset Forfeiture Reform Act of 2014 (H.R.5212, 113th Congress, 2013-14). Rep. Timothy Walberg's proposal sought to improve personal property rights by reforming federal asset forfeiture laws. While not as far-reaching as Senator Paul's FAIR Act, in some respects (Sen. Paul's bill would do more to end the incentives driving the abuse of civil forfeiture laws), the bill featured a number of laudable proposals.
Sponsor: Rep. Tim Walberg (R-MI-07).
Co-Sponsors: Rep. Dana Rohrabacher (R-CA-48); Rep. Renee L. Ellmers (R-NC-02); Rep. Mike Coffman (R-CO-06); Rep. Cynthia Lummis (R-WY-AL); Rep. Stevan Pearce (R-NM-02); Rep. Reid J. Ribble (R-WI-08); Rep. Rob Bishop (R-UT-01); Rep. Mike Conaway (R-TX-11); Rep. Dr. Paul Broun (R-GA-10); Rep. Curt Clawson (R-FL-19); Rep. Scott Garrett (R-NJ-05); Rep. Scott Tipton (R-CO-03); Rep. Steve Stockman (R-TX-36); Rep. Kerry Bentivolio (R-MI-11); Rep. Tom McClintock (R-CA-04); Rep. Keith Ellison (D-MN-05); Rep. Sam Farr (D-CA-20); Rep. Jim Moran (D-VA-08); Rep. Hank Johnson (D-GA-04); Rep. Tony Cárdenas (D-CA-29).
Like the FAIR Act, Congressman Walberg's bill would have raised the Government's burden, for civil forfeitures, to that of a clear and convincing evidence standard.
Congressman Walberg's bill sought to improve the innocent owner defense by altering who has the burden when the innocent owner defense is affirmatively raised, and by altering some of the language in the innocent owner defense. Under current law, the claimant has the burden of proving that they are an innocent owner by a preponderance of the evidence. If Rep. Walberg's bill were enacted, in its current incarnation, the Government would have the burden of proving that the claimant knew or reasonably should have known that the property was involved in the illegal conduct giving rise to the forfeiture.
Rep. Walberg's bill would have clarified how courts should evaluate arguments that a forfeiture is disproportional to the offence giving rise to the forfeiture by inserting that "the court shall consider such factors as the seriousness of the offense, the extent of the nexus of the property to the offense, the range of sentences available for the offense giving rise to forfeiture, the fair market value of the property, and the hardship to the property owner and dependents." Currently, several courts only evaluate whether the forfeiture, if chiefly punitive, would be in excess of the criminal penalty range prescribed by Congress. If adopted, this would constitute a significant improvement over current law.
Rep. Walberg's bill would have increased the reporting requirements for a forfeiture--always a good thing.
Like Senator Paul's FAIR Act, H.R. 5212 attempted to rein in circumventions of state laws governing forfeitures and the distribution of forfeiture proceeds. The two bills, however, differed in approach and probable efficacy. H.R. 5212 would have amended 28 U.S.C. § 524(c) by inserting ‘‘(12) The Attorney General shall assure that any equitable sharing between the Department of Justice and a local or State law enforcement agency was not initiated for the purpose of circumventing any State law that prohibits civil forfeiture or limits use or disposition of property obtained via civil forfeiture by State or local agencies.’’ Adoption of such language would constitute an improvement over current law by expressing a congressional wish that the DOJ not use the equitable sharing program to facilitate circumventions of state laws governing asset forfeiture. Our worry, though, was that the language lacked any teeth to compel enforcement of its aim. First, if H.R. 5212's anti-circumvention language were adopted, the Office of the Attorney General could continue to knowingly facilitate circumventions of state and local asset forfeiture laws by pointing to any other purpose as the purpose for which federal adoption of the forfeiture was initiated. Because the federal government uniformly enjoys superior resources and greater expertise for prosecuting forfeitures, alternative explanations will always be available. Second, even if a party were able to prove that a forfeiture was adopted by a federal agency for the express purpose of circumventing a state law that prohibited civil forfeiture or limited the use or disposition of property, it's not clear that H.R. 5212 would provide the means for a party to recover the asset or to sue to stop the disbursement of an equitable sharing award. A better approach, we think, would be to adopt the FAIR Act's proposal of directing all federal forfeiture proceeds to the Treasury fund, disbanding the equitable sharing program, and giving Congress discretion over how to appropriate forfeiture proceeds. Barring that, a future incarnation of H.R. 5212 would be improved by removing authorization for the award of any equitable sharing if the forfeiture proceeds were either (a) derived from a civil forfeiture in a state where civil forfeiture is unavailable under state law or (b) where local law enforcement would be ineligible to receive forfeiture proceeds, but for the existence of the federal equitable sharing program--that appears, after all, to be the intent of H.R. 5212. Moreover, H.R. 5212 should (if the FAIR Act proposal is shunned) expressly grant standing to forfeiture claimants and stipulated forfeiture proceeds beneficiaries (such as the school districts of Missouri and North Carolina) to sue on theories that such circumventions are unlawful, if the parties can show direct harm.
Unlike Senator Paul's FAIR Act, the bill would have still permitted most of the incentives driving asset forfeiture abuse by leaving in place the DOJ's Asset Forfeiture fund instead of directing proceeds to the Treasury, as the FAIR Act would do. That's unfortunate but may be more of a statement on what Representative Walberg thought could get passed than what Mr. Walberg thought would be a good idea (notably, Rep. Walberg co-sponsored the House version of the FAIR Act).
H.R. 5212, would have required that the government notify potential claimants that they may be able to obtain free or reduced rate legal representation under 18 U.S. Code § 983(b), with its forfeiture notices. This is a decent start, however, Congress should do more:
a.) Congress should require that forfeiture notices fully inform potential claimants of what steps the potential claimant needs to take so as to gain a court-appointed lawyer under 18 U.S. Code § 983(b) and of the eligibility requirements.
b.) Congress should require that forfeiture notices inform potential claimants that they can petition the court for an award of their legal expenses if they substantially prevail in an adjudicated civil forfeiture action (28 U.S.C. §2465). 18 U.S.C. § 983(b) appointments are reserved for indigent claimants facing civil forfeitures against real property that is being used by the person as a primary residence and/or potential claimants facing a related criminal case who already have a court-appointed lawyer. Few potential claimants fit either criteria. Congress has, however, enacted legislation (the Civil Asset Forfeiture Reform Act of 2000 (the first "CAFRA")) to stimulate a market for lawyers to take civil forfeiture cases on the hopes of being awarded attorney fees and other legal expenses. [c.f. Amicus Curiae Americans for Forfeiture Reform in Support of Defendants-Appellants and Reversal of the Judgment Below, United States v. Moser, No. 13-55266 (9th Cir. Nov. 1, 2013), ECF No. 20).] These fee-shifts provide potential claimants with the possibility of finding lawyers who will take their cases at no cost to the claimant or at a reduced cost. Potential claimants should be made aware of this.
Moreover, Congress should want claimants to seek fee-shifts because they serve the public good. First, in assuring that more forfeiture claimants are competently represented, fee-shifts reduce the instances where the Government is able to profit from a claimant's ignorance of asset forfeiture procedure. Second, fee-shifts discourage the Government from pursuing bad cases because fee-shifts attach a substantial cost to losing an adjudicated civil forfeiture case. Third, fee-shifts encourage vigorous representation because the attorneys' pay hinges on prevailing. Fourth, fee-shifts make it more economically feasible for attorneys to offer pro bono legal services by providing some assurance that if the litigation does stretch out for years, and if their client substantially prevails, the attorney doesn't bear a crippling expense. Moreover, fee-shifts enable institutions like the ACLU and the Institute for Justice to defend against more injustices by defraying their costs when they prevail. All of these goods, however, go unrealized if the claimant, unaware of the promise of fee-shifts, forgoes consultation with an attorney because the potential legal expense appears to outweigh the value of the property seized.
c.) Congress should instruct the Executive branch to standardize forfeiture notifications. Currently, different agencies send out different instructions to potential claimants. That leads to confusion over how to respond to the instructions.
d.) Congress should instruct the Executive branch to make clearer the instructions for, and the consequences of, filing a "Petition for Remission and/or Mitigation" or filing a claim contesting the forfeiture. The current instructions are confusing and fail to adequately explain that filing a Petition for Remission and/or Mitigation, in lieu of a claim, concedes the potential claimant's right to have a judge or jury adjudicate the forfeiture action. Furthermore, the instructions obscure the reality that filing a Petition for Remission and/or Mitigation gives the agency (that has already declared its intent to forfeit the property) discretion to decide whether to grant the Petition for Remission and/or Mitigation. The upshot is that some potential claimants mistakenly file Petitions for Remission and/or Mitigation when they mean to file claims or don't understand the consequences of filing such petitions.
 Rep. Dr. Paul Broun, having opted to (unsuccessfully) run for the U.S. Senate in lieu of the U.S. House of Representatives, will be replaced by member-elect Jody Hice (R-GA-10) in the 114th Congress.
 Rep. Steve Stockman, having opted to (unsuccessfully) run for the U.S. Senate in lieu of the U.S. House of Representatives, will be replaced by member-elect Dr. Brian Babin (R-TX-36) in the 114th Congress. Notably, Rep. Stockman also introduced H.R. 5847, an act that would have prevented federal agencies from participating in or benefiting "from any multiple-jurisdiction, equitable sharing, or shared civil asset forfeiture program with any State or local government, [or] accept[ing] or adopt[ing] property seized by a State or local government."
 Rep. Kerry Bentivolio, having lost the Republican primary to represent Michigan's 11th House district, will be replaced by member-elect Dave Trott (R-MI-11) in the 114th Congress.
 Rep. Jim Moran, having opted to retire from the U.S. House of Representatives, will be replaced by member-elect Don Beyer (D-VA-08) in the 114th Congress.
U.S. Rep.s Tony Cardenas (D) and Scott Garrett (R) have introduced, H.R. 5502, a House version of Sen. Paul's FAIR (Fifth Amendment Integrity Restoration) Act
Delighted to report (1) that U.S. Rep.s Tony Cardenas [CA-29 (D)] and Scott Garrett [NJ-05 (R)] have introduced H.R. 5502, a House version of Sen. Paul's FAIR (Fifth Amendment Integrity Restoration) Act, and (2) that Congressman Tim Walberg [MI-07 (R)], author of H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, has agreed to become a cosponsor of the Garrett-Cardenas-Paul FAIR Act.
Jennifer Emily at the Dallas Morning News reports:
Dallas County District Attorney Craig Watkins, who has been criticized recently for using his office’s asset forfeiture funds to settle a claim after a car crash, also used the money to pay attorneys when he was held in contempt of court last year.
The district attorney’s office spent $32,752 on outside counsel in the fiscal year ending Aug. 31, 2013, according to the Dallas County auditor.
Watkins’ spokeswoman, Debbie Denmon, said at least some of the money went to private attorneys who worked alongside prosecutors on the contempt case, which Watkins ultimately won.
“They were asking for his work product, and he refused to give it up,” Denmon said. “It was his official capacity.”
Attorney Mike Heiskell received about $18,000, Denmon said. Attorney Chad Baruch was also paid with forfeiture funds, but it was unclear how much.
Denmon said she did not know whether attorney Scottie Allen, who also worked on the contempt case, was paid from forfeiture funds. Allen could not be reached for comment.
Watkins was held in contempt in March 2013 when he refused to testify at a hearing where he was accused of seeking to indict a wealthy oil heir to benefit a political benefactor.
A judge held Watkins in contempt and dismissed the charges against the heir. Another judge later tossed the contempt citation; the dismissal of the charges is being appealed.
In February 2013, Watkins rear-ended another driver on the Dallas North Tollway when he was looking at his phone. He used $11,000 to repair the vehicle, which was bought with forfeiture money.
He also paid the driver more than $50,000 to settle a complaint without informing county commissioners. The settlement also required the other driver not to discuss the crash.
A reform bill sponsored by Texas State Senator John Whitmire (D-15) in 2011 was supposed to set stricter limits on asset forfeiture. The Texas Courts Municipal Education Center describes this legislation:
Subsections added to Article 59.06 of the Code of Criminal Procedure provide guidance on permissible uses for forfeited property and procedures for the disposition of such property. Under the new provisions, 40 percent is to be allocated to the seizing department, 30 percent to the prosecuting attorney’s office, and 30 percent to the general revenue fund. A list of prohibited uses is added to the article and includes: donations and political contributions, training and travel expenses, the purchase of alcoholic beverages, and payment of salaries for prosecutorial or law enforcement employees.
The bill also sets forth accountability procedures, including audits, designed to ensure the appropriate handling and use of seized assets. The Office of the Attorney General is authorized to seek injunctive relief and/or civil penalties not to exceed $100,000 per violation of Article 59.06.
Detailed reporting requirements concerning the use of forfeiture funds and an auditing process are also added to the Code. The new regulations will be effective on assets seized and expenditures made after the act becomes effective September 1, 2011.
Indeed, the use of forfeiture proceeds to fund legal defense and repair personal automobiles without notifying the Dallas County Commissioners seems to blatantly violate Article 59.06 (d):
Proceeds awarded under this chapter to a law enforcement agency or to the attorney representing the state may be spent by the agency or the attorney after a budget for the expenditure of the proceeds has been submitted to the commissioners court or governing body of the municipality.
It's time for the Texas Legislature to renew the focus on asset forfeiture laws with the understanding that allowing law enforcement direct access to forfeiture funds will inevitably breed abuse and corruption. Without ending this system, and returning the proceeds of asset forfeiture to a general fund directly appropriated by the legislature, it is certain that future scandals stemming from the abuse of forfeiture proceeds is inevitable.
Elizabeth Myers at the Maryland Watchdog reports on a public records request she filed with the county police of Anne Arundel, Maryland:
Anne Arundel County participates in required reporting in Maryland, part of Governor O’Malley’s StateStat initiative. SB 447, signed into law in 2009, requires certain reporting from jurisdictions with Special Weapons and Tactics (SWAT) teams.What is a SWAT team? The guys in the tactical gear that serve no-knock warrants.Since the county reports this information to the state, every six months, I requested it from Anne Arundel County in electronic format – that request was refused. Furthermore, I requested the fees be waived since all but a couple questions were straight from the state level StateStat report – they refused, charged $20, and didn’t answer those questions, anyway.Each reporting agency is required to provide:
- The number of times the SWAT Team was “activated and deployed;”
- The location where SWAT Team deployed (e.g., zip code);
- The legal authority for each activation and deployment (i.e., Arrest Warrant, Search Warrant, Barricade, Exigent Circumstances, or Other);
- The reason for each activation and deployment (i.e., Part I Crime, Part II Crime, Emergency Petition, Suicidal, or Other); and
- The result or outcome of each deployment (i.e., forcible entry used; property or contraband seized; weapon discharge by a SWAT Team member; the number of arrests; person or animal injury or death by a SWAT Team member; injury to SWAT Officer).In Anne Arundel County calendar year 2012, there were 94 SWAT raids: 1.81 per week. Anne Arundel County ranks as one of the top 5 jurisdictions in the state that conducts SWAT raids.Raids are for two types of statutory crimes: Part I; Part II. Part I crimes are homicide, rape, robbery, aggravated assault, breaking and entering, larceny/theft motor vehicle theft, and arson. Part II crimes are essentially all drug related. Here are some stats for Anne Arundel:
- 68 percent of raids were for drugs/drug related
- 37 percent of raids used forcible entry
- 18 percent of raids seized property (no further information given)
- 30 percent of raids had 0 arrests
- 45 percent of raids had 1 arrest
- 9 raids were without warrant
- 0 raids had a weapon dischargedFor all of this activity, the total budget is $2,716,900, which breaks down to a cost of $28,903 per raid.
Radley Balko commented on the potential for this activity to be funded by federal asset forfeiture revenues shared with Anne Arundel County Police in 2011:
Working with the feds, the Anne Arundel County, Maryland, Police Department set up a fraudulent payment processing business for online poker players. They then took the players’ money, under false pretenses, and deposited it in the federal government’s asset forfeiture fund. Complaining players, none of whom were ever charged with a crime, were told they’d have to try to recoup their losses from the poker sites, which of course have now had their assets seized in a separate federal investigation, and which never actually saw the money from these particular players, anyway.
Under federal “adoption” policy, any local police department working with the federal government in a criminal investigation gets to keep up to 80 percent of the property it seizes in that investigation. And once the feds get involved, the whole thing officially becomes a federal investigation, which allows local police departments to skirt state laws aimed at protecting citizens from forfeiture abuse.
In this case, the Anne Arundel Police Department bagged $30 million
seizedstolen from online poker players. They celebrated with a press conference and oversized novelty check. They’ll use the money to buy some cool new police equipment. Let’s hope it’s for more SWAT gear, so they can feel a bit safer the 150 times each year Anne Arundel County SWAT teams are deployed, most of the time to serve search warrants that result in misdemeanor charges.
This wouldn't be possible under Maryland law, which sends forfeiture revenues to a general fund, but as the Institute for Justice notes:
...But Maryland civil forfeiture law, unlike most other states, avoids creating a profit incentive for local law enforcement. All proceeds from civil forfeiture flow to the state general fund or the local governing body.
With the profit incentive eliminated under state law, Maryland law enforcement can and does still obtain forfeited property by working with federal authorities through adoption and equitable sharing. Despite the mandate that forfeiture proceeds go the general fund, state law enforcement, working with their federal partners, received more than $50 million in forfeiture revenue from 2000 to 2008. This end-run around state forfeiture law was challenged in court, but the Maryland Court of Appeals ratified the practice of equitable sharing even when law enforcement failed to obtain a court order permitting the use of the loophole
The Coeur d'Alene Press recently published a three-part series on civil forfeiture in Idaho. The first part "Taking the profit out of crime" describes how law enforcement can force criminal defendants to defend themselves in both criminal and civil court through the use of civil forfeiture:
"The laws are set up that we can hurt those people two ways: you take them to jail and seize their drugs, which takes them out of business, or you can seize their assets," Wolfinger said. "We've done both fairly successfully and we continue to do that."
Under Idaho statute, law enforcement agencies have the ability to seize assets potentially used in drug trafficking or manufacture. These assets range from cash and vehicles to equipment used to cultivate and create the drugs themselves.
Once assets are seized, the case is forwarded to the civil division of the county prosecutor's office.
"We (then) file a civil complaint and get the interested parties served to give them an opportunity to contest the case if they want to," Kootenai County Prosecutor Barry McHugh said.
If the civil case is successful, both the investigating agency and the prosecutor's office receive portions of the assets seized.
Law enforcement agencies are able to use these funds for, according to Wolfinger, anything in the "drug enforcement nexus." This includes training, new equipment, banquets and contributions to organizations such as the Idaho Meth Foundation.
The prosecutor's office receives 15 percent of the proceeds in the event that funds are obtained as a result of the case.
"This is for, in some regard, the time and the work that went into the effort in the forfeiture action as a way to reimburse the county for the time spent by employees," McHugh said.
In the second part, "Drug seizure funds to purchase vehicle", reporter Keith Cousins notes the use of forfeiture proceeds to fund K-9 enforcement squads and purchases of military weaponry:
"There's no way we could spend over $300,000 for a SWAT vehicle; the budget certainly couldn't handle that," Wolfinger said. "But here's the opportunity to keep our team safe and the taxpayer doesn't deal with a nickel of it."
The sheriff's office is currently awaiting delivery of its own $335,000 BearCat, purchased with money from the county's drug forfeiture fund. The transaction was approved in March by the county's board of commissioners.
The armored truck is expected to arrive at the end of this month.
Since 2009, the Kootenai County Sheriff's Office has taken in nearly $2 million in drug forfeiture proceeds.
In 2013, the sheriff's office took in $271,230 in illegal drug proceeds. According to Lt. Stu Miller, the office has been awarded $39,136.55 of those proceeds. The rest of the funds are either part of pending court decisions, have been returned to defendants or given to the prosecutor's office.
"We use it (the funds) to send officers to schools to learn about how to find these drugs and take them off the street," Wolfinger said. "We buy equipment for the SWAT team and for the patrol guys. We've done some weapon enhancements for the patrol guys because they're dealing with these people every day, so there's certainly a drug nexus there."
This total does not include three vehicles that were seized and then used by sheriff's office detectives in the course of their work.
"That's a great opportunity for us to get a vehicle with no taxpayer dollars involved," Wolfinger said.
Smaller items, such as replacement siren speakers for sheriff's office vehicles and parts for weapons, have also been purchased using forfeiture funds.
Post Falls Police Chief Scot Haug said that, while his department has a much smaller drug forfeiture account when compared to the sheriff's office, the funds are all used "to reduce illegal drug activities in the community."
"So there is a variety of things that we've done with the money in the past such as provided training for our officers, drug reduction type programs and body armor for our SWAT officers," Haug said. "It's all one-time purchases, typically capital purchases."
Haug added that the department's K9 program was created using a significant amount of seizure money and the majority of the program is still funded with it.
The third part, "Burden of proof", features a defense of civil forfeiture by law enforcement:
Kootenai County Prosecutor Barry McHugh argues that it's in fact the prosecution that bears the burden of proof.
"In some cases, the claimants don't present any evidence but ultimately the court decides in their favor," McHugh said.
To support his argument, McHugh referenced a recent appellate court decision that could return property seized under the state's civil forfeiture law to its owner. The ruling states "the plaintiff must prove by preponderance of the evidence that the vehicle was used or intended to use ... " indicating, McHugh said, that his office bears the burden of proof.
According to Salzman, forfeiture can also create a "course of least resistance" for law enforcement agencies because "you just have to suspect the property of being involved in a crime" in order to seize it.
"I think it breeds a culture of seizure where it's easy for the law enforcement agencies to do it compared to the alternative which is charging people for a crime and making a case," Salzman said.
However, those in charge of local law enforcement agencies say they disagree with Salzman's assessment.
Kootenai County Sheriff Ben Wolfinger said the motivation behind any civil forfeitures his office makes is not the proceeds, but taking drugs off the street.
"We haven't really gone after the cash, we are going after the dope," Wolfinger said. "We're not making money taking dope off the street, but we are taking dope off the street."
Wolfinger added that individual officers do not get bonuses and do not have any additional incentive when it comes to drug cases that include forfeitures.
"We've been able to send some officers to training we wouldn't have been able to and that's good. We've been able to buy some equipment we wouldn't normally have been able to buy and that's good," Wolfinger said. "But we're taking a lot of dope dealers off of the street."
Post Falls Police Chief Scot Haug said he sees civil forfeiture as a mechanism that makes criminals pay for their crimes while taking the burden of funding law enforcement activities off taxpayers.
"What a better way to be able to help train some officers and help get them some equipment, to help start a K9 program, then to have the drug dealers pay for it," Haug said. "If we didn't have that drug seizure money, you and I would be paying for that. It's about time that the criminal chips in and pays for some of the equipment and training to fight this problem that we have."
The forfeiture of assets, like the forfeiture of cash, forfeiture of cars, forfeiture of cells phones and other personal electronics is a powerful tool in the government's arsenal against a person they have arrested.
Both federal and state prosecutors employ forfeiture procedures, and the rules about getting your property back and emplying a successful forfeiture defense are different for each entity that seized your property.
State Forfeitures and Forfeiture Defense in Florida.
Typically, the police and prosecutors will seek forfeiture of cash, jewelry, cars, and electronics. In order to obtain a forfeiture of the property, the seizing agency must provide notice of the forfeiture. Sometimes they will give the person notice of the forfeiture at the scene of the arrest and other times they will send notice of the forfeiture in the mail.
Your rights to fight forfeiture and get your property back:
Once you receive notice of the forfeiture, you have twenty days to file a notice requesting an Adversarial Preliminary Hearing (APH). The form of your request for a hearing must be in writing, must identify the property and the seizing agency and the date of the seizure, and most importantly- must be sent by certified mail to the agency seeking forfeiture. Upon receipt, the agency must schedule a hearing in court before a judge within ten days.
At the APH the seizing agency bears the burden of showing probable cause for forfeiture: a nexus between the criminal conduct and the property. If the court finds no probable cause, the property will be returned. If the court finds probable cause, then the forfeiture case will continue. The seizing agency will file a lawsuit against the property seeking forfeiture. One defense to this forfeiture lawsuit would be an "innocent owner" defense.
While the law regarding forfeiture in Federal Court is similar to the laws in the State of Florida, the procedure to fight the forfeiture is different.
The agency seeking forfeiture will send a notice of seizure which requires the forfeiture claimant to file a response within 30 days.
There are several options about how you can respond to a federal forfeiture. They include making an immediate offer of settlement, requesting an administrative review of the forfeiture, and requesting an immediate court case on the forfeiture. Many times we will request an administrative review of the forfeiture as it still allows for us to request the filing of a court case at any time.
One of the overriding principles of forfeiture asset seizure law is that the laws allowing for forfeiture asset seizure are "strictly construed" against the seizing agency. This means that if at any time during the forfeiture process the seizing agency fails to provide proper notice or misses a statutory deadline, the property will be ordered returned.
Those interested in the use of aggressive, militarized law enforcement tactics in Ferguson, Missouri, should consider the role of non-appropriated asset forfeiture revenues as a substantial funding mechanism for military weaponry and its use. First, consider this note from the website of the Metro Air Support Unit (a joint operation with the St. Louis County Police Department, the St. Louis Metropolitan Police Department, and the St. Charles County Sheriff’s Department):
The contracts signed by each of the three participating departments specify the agreements of each department to provide the personnel as listed above and the annual dollar amount to be contributed by each department towards operating expenses. The contracts state the St. Louis County Police Department and the St. Louis Metropolitan Police Department are to contribute $150,000 annually and due to a lower call volume and usage of the helicopter the St. Charles County Sheriff’s Department is to contribute $100,000 annually.
All of the money contributed by each department is money that is collected from asset forfeiture. Asset forfeiture is a term used to describe the confiscation of assets which are either the proceeds of crime or the instrumentalities of crime. No funding of the Metro Air Support Unit comes from any of the police departments actual budgets.
In recent years all of the Metro Air Support Unit’s major equipment purchases have been funded with federal grant money, most of which is provided through the Department of Homeland Security or U.A.S.I. (Urban Areas Security Initiative). The unit’s 2009 model MD-500E helicopter, FLIR (forward looking infra-red) system, and onboard moving maps systems are some examples of this equipment that has been purchased. The unit is also scheduled to receive a fourth MD-500E model helicopter upon its completion at the MDHI factory in November of 2012.
Second, consider this October 2011 story by Christine Byars in the St. Louis Post-Dispatch:
Use of rifles has raised questions in some communities about liability and the propriety of issuing military-style weapons to rank-and-file officers who seldom encounter terrorist or spree shooting situations.
But Fitch cited a 2008 Maplewood shooting, in which a sniper killed a firefighter and wounded two police officers, and the 2008 Kirkwood City Hall attack, that left six victims and the killer dead, as situations in which rifles would be valuable.
"I understand the criticism, but it isn't realistic," Fitch said. "Hoping that it never happens is not a good strategy."
St. Louis County was among large departments to issue rifles after a 1997 incident in which two heavily armed bank robbers shot it out for 44 minutes with Los Angeles police, wounding 11 officers and seven civilians before being killed. Out-gunned police obtained rifles from a gun shop to fight back.
The county police have bought about 156 rifles with asset forfeiture money, about half the number needed. At more than $1,000 each, it could take years, Fitch said.
Taken individually, it doesn't seem like much that these law enforcement agencies purchased heavy duty weapons or fund personnel costs for the operation of military-grade hardware through asset forfeiture revenues, but it begs the question: why do we have a legislative branch of government when the executive branch can fund itself through property seizure and forfeiture? Would a legislature make substantially the same appropriations if this money were part of the general fund for the respective political units involved in these organizations? Should the Missouri legislature, county, and municipal governments continue to abdicate their power of the purse over law enforcement?
It is also worth noting that under Missouri law, civil forfeiture revenue is supposed to go to the School Building Revolving Fund. Unfortunately, thanks to the federal Equitable Sharing Program, law enforcement can funnel these revenues through federal agencies. As the Institute for Justice notes:
Equitable sharing makes this bad situation worse. Through equitable sharing, police and prosecutors can take property from citizens under federal civil forfeiture law instead of their own state laws. From the perspective of law enforcement, this is a good deal: Federal law makes civil forfeiture both relatively easy and rewarding, with as much as 80 percent of proceeds returned to the seizing agency.
Thus, with equitable sharing, state and local law enforcement can take and profit from property they might not be able to under state law. If a state provides owners greater protections or bars law enforcement from directly benefiting from forfeitures, agencies can simply turn to federal law.
I am reminded of this quote from Kevin Glaser, a retired narcotics officer who currently serves as current vice president of the Missouri Narcotics Officers Association, from an article in the St. Louis Riverfront Times. To wit (emphasis mine):
"If we seize $50,000 from a drug seizure and it is drug proceeds, it's forfeited through the state of Missouri to the school fund to fund our schools. That sounds good. They have $50,000 to play with now. In actuality, though, what happens is our state legislators, when they're divvying out the money to the schools, and they see that $50,000 go into the school fund from asset forfeiture, they take out $50,000 they were gonna contribute to the school fund. The school fund does not make an additional $50,000 off of that. That's the way asset forfeiture has been since it came into effect.
What law enforcement has done is, seeing that there's really no good coming to Missouri from asset forfeiture because other than funding general revenue -that's all it really does - we utilize federal forfeiture, which allows us to take that $50,000 seized from the drug proceeds and then we can, applied through a court system that has several checks and balances to make sure it was a very factual and legitimate seizure, then that $50,000 -- and actually it's only 80 percent of that because the federal government gets 20 percent right off the bat -- but 80 percent of that $50,000 can come back and be used by local law enforcement for very specific -- buying equipment, buying cars, -- there are very specific requirement, you just can't go out and spend it randomly on whatever you want. It can be utilized by the police department to further enhance the department and drug investigations and criminal investigations.
In other words, Kevin Glaser has a problem with the idea that the Missouri Legislature might do their duty and *gasp* appropriate funds to public uses that aren't law enforcement. Indeed, under federal asset forfeiture, Missouri law enforcement does not *really* need the consent of the legislature to receive or spend public dollars...which is really the point of having a legislature in the first place.
Carl Bearden, who served as the Speaker pro tem of the Missouri House of Representatives from 2005 to 2007, responded to Glaser's statement:
His statement is a bunch of bovine fecal matter. It is an example of attempting to show the ends justify the means. His statement of redirecting money is false. He simply plays on a common perception of what happens. In the end, It is much better to have people we elect to make those decisions that the non-elected, unaccountable people like Glaser make them "on our behalf".
There are two legislative solutions that can fix this situation. First, the Missouri legislature can ban the practice of civil asset forfeiture and state law enforcement participation in federal equitable sharing; the Institute for Justice has drafted excellent model legislation on this point. Second, US Senator Rand Paul's (R-KY) Fifth Amendment Integrity Restoration Act would send federal forfeiture revenues from the Department of Justice to the Treasury's General Fund, and would further force federal forfeiture distributions to state law enforcement to follow state law. You can support Senator Paul's FAIR Act by clicking through here and using AFR's Popvox legislative advocacy tool to send an endorsement of this legislation to your elected federal representatives.
When attempting to justify the reasonableness of a questionable search or seizure, prosecutors frequently argue that police had probable cause because police observed the property owner doing something that drug dealers are known to do. Missing from the argument is any qualifier showing that the activity is exclusive to the drug trade. Thus, being nervous--or not nervous enough--becomes suspicious, and probative of drug-activity. Similarly, driving to or from a city that is a known drug source--which is every American city because drugs are bought, sold, and consumed in every American city-- is suspicious, according to law enforcement. Using the nation's interstate highways involves suspiciously travelling on known 'drug-trafficking corridors,' because drug dealers are known to use these highways to move drugs and drug proceeds. Indeed, according to prosecutors, nearly everything is probative of drug activity, if they can point to any suggestion that drug dealers are thought to have done the activity.
Prosecutors then bullet these suspicious indicators together and argue that, viewed from the totality of circumstances, police had probable cause to conduct the search or seizure, or that the property is subject to forfeiture.
Over the years, we've watched as prosecutors have argued that eating fast food, having a clean car, having a dirty car, visiting relatives, taking scenic routes, renting a car, having too much luggage, having too little luggage, carrying cash, using items to secure cash--like rubber bands or containers, having cash freely strewn about, using GPS, using cell phones, using maps, using motels, and not using motels are all suspicious of drug-trafficking.
And, too frequently, judges buy these arguments without examining the argument to find out if there is something exclusive to drug dealers in the supposedly suspicious behaviour, or recasting the argument to show the absurdity of the argument (viz., some drug dealers drink milk, therefore drinking milk is indicative of drug-dealing; or drug dealers breathe air, therefore breathing air is indicative of drug-dealing).
Kudos are deserved, then, when a judge sees through this legerdemain and denounces the practice, as U.S. District Judge Monti L. Belot did yesterday in the matter of U.S. v. $39,440.00 in United States Currency.
You may contact your Congressperson in support of forfeiture reform through our popvox portal @ https://www.popvox.com/orgs/forfeiturereform, your Congressperson's website, or by calling 202-225-3121 to reach your Congressperson's office through the Capitol Hill switchboard operator.
Rep. Jim Sensenbrenner, Jr. (WI-05)
Rep. Howard Coble (NC-06)
Rep. Lamar Smith (TX-21)
Rep. Steve Chabot (OH-01)
Rep. Spencer Bachus (AL-06)
Rep. Darrell Issa (CA-49)
Rep. Randy Forbes (VA-04)
Rep. Steve King (IA-04)
Rep. Trent Franks (AZ-08)
Rep. Louie Gohmert (TX-01)
Rep. Jim Jordan (OH-04)
Rep. Ted Poe (TX-02)
Rep. Jason Chaffetz (UT-03)
Rep. Tom Marino (PA-10)
Rep. Trey Gowdy (SC-04)
Rep. Raul Labrador (ID-01)
Rep. Blake Farenthold (TX-27)
Rep. George Holding (NC-13)
Rep. Doug Collins (GA-09)
Rep. Ron DeSantis (FL-06)
Rep. Jason Smith (MO-8)
Rep. John Conyers, Jr. (MI-13) [Ranking Member]
Rep. Jerry Nadler (NY-10)
Rep. Bobby Scott (VA-03)
Rep. Zoe Lofgren (CA-19)
Rep. Sheila Jackson Lee (TX-18)
Rep. Steve Cohen (TN-09)
Rep. Hank Johnson (GA-04)
Rep. Judy Chu (CA-27)
Rep. Ted Deutch (FL-21)
Rep. Luis Gutiérrez (IL-04)
Rep. Karen Bass (CA-37)
Rep. Cedric Richmond (LA-02)
Rep. Suzan DelBene (WA-01)
Rep. Joe Garcia (FL26)
Rep. Hakeem Jeffries (NY-08)
Rep. David Cicilline (RI-01)
Rep. Pedro Pierluisi (PR-At large delegate)
II. Equitable Sharing.
Seeing inherent danger in asset forfeiture, various states have enacted laws governing the availability of forfeiture and the distribution of asset forfeiture proceeds. The laws of Nebraska and Wisconsin, for instance, largely treat forfeiture as a criminal punishment, requiring that the states prove beyond a reasonable doubt that seized property was used in violation of its laws before a forfeiture can take place. Other states have chosen to address the implicit danger in asset forfeiture by removing the incentives that may motivate agencies to seize stuff for the enrichment of the departments. The constitutions of North Carolina and Missouri, for instance, direct forfeiture proceeds towards education.
Under current law, state and local law enforcement can, however, evade these restrictions by requesting that a federal agency adopt the case and initiate a federal forfeiture action against the property. If the federal forfeiture action is successful, the forfeiture proceeds go into a DOJ-controlled asset forfeiture fund. The asset forfeiture fund is subsequently tapped to give state and local law enforcement agencies payments of up to 80% of the proceeds resulting from such adoptions, through the DOJ's equitable sharing program.
Use of the equitable sharing program thus frustrates the various restrictions states have placed on local asset forfeiture.
Like Senator Paul's FAIR Act, H.R. 5212 attempts to rein in these circumventions of state laws. The two bills differ, however, in approach and efficacy.
H.R. 5212 would amend 28 U.S.C. § 524(c) by inserting ‘‘(12) The Attorney General shall assure that any equitable sharing between the Department of Justice and a local or State law enforcement agency was not initiated for the purpose of circumventing any State law that prohibits civil forfeiture or limits use or disposition of property obtained via civil forfeiture by State or local agencies.’’
Adoption of such language would constitute an improvement over current law by expressing a Congressional wish that the DOJ not use the equitable sharing program to facilitate circumventions of state laws governing asset forfeiture. Our worry, though, is that the language lacks any teeth to compel enforcement of its aim. First, if H.R. 5212's anti-circumvention language were adopted, the Office of the Attorney General could continue to knowingly facilitate circumventions of state and local asset forfeiture laws by pointing to any other purpose as the purpose for which federal adoption of the forfeiture was initiated. Because the federal government uniformly enjoys superior resources and greater expertise for prosecuting forfeitures, alternative explanations will always be available. Second, even if a party were able to prove that a forfeiture was adopted by a federal agency for the express purpose of circumventing a state law that prohibited civil forfeiture or limited the use or disposition of property, it's not clear that H.R. 5212 would provide the means for a party to recover the asset or to sue to stop the disbursement of an equitable sharing award.
A better approach, we think, would be to adopt the FAIR Act's proposal of directing all federal forfeiture proceeds to the Treasury fund, disbanding the equitable sharing program, and giving Congress discretion over how to appropriate forfeiture proceeds.
Barring that, H.R. 5212 would be improved by removing authorization for the award of any equitable sharing if the forfeiture proceeds were either (a) derived from a civil forfeiture in a state where civil forfeiture is unavailable under state law or (b) where local law enforcement would be ineligible to receive forfeiture proceeds, but for the existence of the federal equitable sharing program--that appears, after all, to be the intent of H.R. 5212. Moreover, H.R. 5212 should (if the FAIR Act proposal is shunned) expressly grant standing to forfeiture claimants and stipulated forfeiture proceeds beneficiaries (such as the school districts of Missouri and North Carolina) to sue on theories that such circumventions are unlawful, if the parties can show direct harm.
Congressman Walberg has introduced a bill aimed at reforming federal asset forfeiture practice. Thoughts on the proposed legislation:
U.S. Congressman Timothy Walberg (R-MI-7) has introduced H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, legislation seeking to improve personal property rights by reforming federal asset forfeiture laws. While not as far-reaching as Senator Paul's FAIR Act, in some respects (Sen. Paul's bill would do more to end the incentives driving the abuse of civil forfeiture laws), the bill does feature a number of laudable reforms.
Some quick thoughts on what the bill would do and where it might be improved.
1.) It would require that the Government inform potential claimants, with its forfeiture notice, that the claimant can petition the court for a free lawyer or discounted legal services to defend against a federal civil forfeiture action. The instances where the court would appoint such a lawyer are limited (mostly involving real property where the forfeiture victim is using the real property as their primary residence or where the Government has concurrent criminal and civil prosecutions). Nonetheless, there are instances where the court could appoint a lawyer in response to a petition, yet most claimants aren't aware of the option (or become aware of the option when it is too late). Congressman Walberg's legislation would be an improvement. Better would be if the Government were required to inform the potential claimant, as well, that they can be reimbursed for all of their legal expenses if they substantially prevail in an adjudicated forfeiture case. For many property seizure victims, absent that knowledge, it seems absurd to spend thousands of dollars fighting a forfeiture, if the expenses would exceed the value of the seized property. Better still would be requiring the Government to provide an attorney to the indigent in federal forfeiture actions. Forfeitures are complex, quasi-criminal actions. Ideally, no one would have to face a federal forfeiture action without a competent forfeiture attorney. At a minimum, though, everyone should be fully informed of their options.
2.) Like the FAIR Act, Congressman Walberg's bill would raise the Government's burden, for civil forfeitures, to that of a clear and convincing evidence standard. The current standard is generally a preponderance of the evidence standard. It's debatable how much of a difference a clear and convincing evidence would make in most forfeiture cases. Raising the standard is a good thing, though, regardless. If nothing else, it would demonstrate to the courts that Congress was unsatisfied with the standards that they are using to resolve forfeiture actions and it would free judges to rule in favor of claimants when the judges are suspicious of the historical application of forfeiture laws.
3.) Congressman Walberg's bill seeks to improve the innocent owner defense by altering who has the burden when the innocent owner defense is affirmatively raised and altering some of the language in the innocent owner defense. Under current law, the claimant has the burden of proving that they are an innocent owner by a preponderance of the evidence. If Rep. Walberg's bill were passed, in its current incarnation, the Government would have the burden of proving that the claimant knew or reasonably should have known that the property was involved in the illegal conduct giving rise to the forfeiture. However, the bill also appears to make it too easy for the Government to meet that burden.
4.) Rep. Walberg's bill would clarify how courts should evaluate arguments that a forfeiture is disproportional to the offence giving rise to the forfeiture by inserting that "the court shall consider such factors as the seriousness of the offense, the extent of the nexus of the property to the offense, the range of sentences available for the offense giving rise to forfeiture, the fair market value of the property, and the hardship to the property owner and dependents." Currently, several courts only evaluate whether the forfeiture, if chiefly punitive, would be in excess of the criminal penalty range prescribed by Congress--which is absurd considering the lower standard required to perfect a forfeiture and the varying situations of claimants. Moreover, proportionality analysis has been a mess since lower courts started interpreting Austin, Bajakajian, and then the first Civil Asset Forfeiture Reform Act's proportionality language. If adopted, this would be a significant improvement over current law.
5.) Rep. Walberg's bill would increase the reporting requirements for a forfeiture.
and7.) Unlike Senator Paul's FAIR Act, the bill would still allow for most of the incentives driving asset forfeiture abuse by leaving in place the DOJ's Asset Forfeiture fund instead of directing proceeds to the Treasury, as the FAIR Act would do. That's unfortunate but may be more of a statement on what Representative Walberg thinks can get passed than what Mr. Walberg thinks would be a good idea. In any case, Representative Walberg deserves plaudits for introducing substantial reforms, particularly regarding proportionality analysis and the use of equitable sharing agreements to circumvent state laws governing the availability of forfeiture and distribution of its proceeds.